US prof undermines foundations of Aussie firewall

Just as Australian Communications Minister Stephen Conroy thought things couldn’t get any worse, his proposal for the great Aussie firewall is under fire again – this time from the lofty heights of US academia.

A paper by Derek Bambauer, Harvard graduate and Assistant Professor of Law at Brooklyn Law School, not only puts the cat amongst the Australian pigeons; it also sets out a series of key tests - Andy Burn’em please take note - that should be applied to any government proposals for regulating the net. He writes:

To assess legitimacy, the process-based framework asks four questions. First, is a country open about its Internet censorship, and why it restricts information? Second, is the state transparent about what material it filters and what it leaves untouched? Third, how narrow is filtering: how well does the content that is actually blocked - and not blocked - correspond to those criteria?

Finally, to what degree are citizens and Internet users able to participate in decisionmaking about these restrictions, such that censors are accountable? Legitimate censorship is open; transparent about what is banned; effective, yet narrowly targeted; and responsive to the preferences of each state’s citizens.

His verdict is pretty damning as far as Australia is concerned. While it just about gets by on the first of these criteria – the incoming government did make mandatory internet filtering a plank of its election campaign – it is deemed to have failed outright on the other three issues.

On transparency, the government keeps resorting to wild generalisations, talking about the blocking of material that is inappropriate or, as Bambauer observes, "other unwanted material". This is key to the debate that Australia isn’t really having.

The government has quoted a notional list of 10,000 sites that would be blocked. Bambauer asks: do they actually have a clue which these would be? Or is this just a finger in the air? He concludes that it is probably the latter.

Without transparency, it is hard to determine how well the filtering is doing its job: and without transparency, open debate on the issues of what should or should not be banned become next to impossible.

Finally, he raises the question of whether the first criterion is even satisfied. Since it looks more and more likely that the target for the filter list is content deemed unsuitable for adults, as opposed to that which is merely unsuitable for children, even the issue of democratic mandate for this policy may be called into question.

An interesting comparison in this respect is between the Australian total of 10,000 sites to be blocked and the total of sites that the UK-based Internet Watch Foundation (IWF) claims to be involved in blocking. The latter claims to include somewhere between 800 and 1200 live urls at any one time: given that the IWF may be considered to have one of the world’s most comprehensive systems when it comes to blocking access to child porn, this suggests either that Australia thinks it can find another 9,000 such sites – or that its block list will go far, far wider.

Professor Bambauer’s paper is mirrored by the views of one UK counterpart, Lilian Edwards, Professor of Internet Law at Sheffield University. Professor Edwards is principally interested in the law as it pertains to the web and internet technologies and, under the nick of panGloss, writes a very useful blog on these topics.

She has taken on our very own IWF in the past, and following the recent controversy over the IWF’s censorship of allegedly indecent imagery published on Wikipedia, she wrote a closely analysed piece about what should be the principles that underpin internet censorship (aka "filtering"). Her starter for ten was a set of five criteria: namely that any filtering or blocking ought to be transparent, open, democratically determined, judicially backed, and accountable.

There is a pleasing overlap between this set of criteria and those set out by Professor Bambauer.

For those minded to dismiss the above as academic froth, these are both important milestones along the road to a rational approach to internet regulation. The model for regulating media, in the UK, has historically been to ask the media owners to do the job themselves.

That may just have been acceptable when dealing with media that were essentially pushed from publishers to consumers: that is far less acceptable when the media themselves are used as much, or more, as a means of extending public debate on issues as a commercial tool.

As Professor Bambauer points out in his introduction: the Australian experiment is the first attempt by any democratic Western nation to engage, at state level, with the filtering of the internet. However, it comes at a time when almost every other western state - including the UK - is trying to thrash out its approach to internet regulation, so the outcome of this experiment will affect us all.

If reaction to Stephen Conroy’s proposal can result in the emergence of a consensus around the principles that will underpin any such filtering in future, that might just be a good thing. ®